CHAPTER 5 Continuing Obligations This chapter deals with the Issuers’ continuing obligations and one of its objectives is to implement the relevant provisions of Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are Admitted to Trading on a regulated market and Directive 2007/14/EC of 8 March 2007. These requirements do not exclude any other ongoing obligations which may be contained in other chapters of these Listing Rules.
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CHAPTER 5
Continuing Obligations
This chapter deals with the Issuers’ continuing obligations and one of its objectives is to implement the
relevant provisions of Directive 2004/109/EC of the European Parliament and of the Council of 15
December 2004 on the harmonisation of transparency requirements in relation to information about
issuers whose securities are Admitted to Trading on a regulated market and Directive 2007/14/EC of 8
March 2007. These requirements do not exclude any other ongoing obligations which may be contained
in other chapters of these Listing Rules.
Preliminary
5.1 Once an Issuer’s Securities have been duly authorised as admissible to listing on a
Regulated Marketand Malta is the Home Member State, the Issuer shall be responsible for
ensuring compliance with the continuing obligations of these Listing Rules at all times.
5.2 The Listing Authority may, at any time, require an Issuer to publish such information in
such form and within such time limits as it considers appropriate to protect investors or to
ensure the smooth operation of the market.
5.3 If an Issuer fails to comply with the requirement under Listing Rule 5.2, the Listing
Authority may itself publish the information, if the same is available to it, after giving the
Issuer an opportunity to make representations as to why it should not be published.
5.4 Where Malta is the Home Member State, the Listing Authority may subject Issuers to
obligations more stringent than those provided for hereafter or to additional obligations,
provided that they apply generally to all Issuers or to all Issuers of a given Class.
5.5 The provisions of this Chapter shall not apply to Units issued by collective investment
undertakings other than the closed-end type, or to Units acquired or disposed of in such
collective investment undertakings.
5.6 Subject to any exemptions set out herein, this Chapter applies to an Issuer:
5.6.1 whose Securities are admitted to listing on a Regulated Market; and
5.6.2 whose Home Member State is Malta.
5.7 For the purposes of this Chapter, “Home Member State” means:
5.7.1 in the case of an Issuer of Debt Securities the denomination per unit of which
is less than one thousand (1,000) Euro or an Issuer of Shares:
5.7.1.1 where the Issuer is incorporated in a Member State or EEA State,
the Member State or EEA State in which it has its registered office;
5.7.1.2 where the Issuer is incorporated or registered in a non-Member or
EEA State the Member State chosen by the Issuer from amongst
the Member States or EEA States where its securities are admitted
to trading on a Regulated Market. This choice shall remain valid
unless the Issuer has chosen a new Home Member State under
Listing Rules 5.7C and has disclosed that choice.
5.7B In the case of an Issuer not covered by Listing Rule 5.7.1, the Home Member State shall
be the Member State chosen by the Issuer from among the Member States or EEA States
in which the Issuer has its registered office, where applicable, and those Member States or
EEA States where its securities are admitted to trading on a Regulated Market. This choice
shall remain valid for at least three years unless its securities are no longer admitted to
trading on any Regulated Market in the Member States or EEA States or unless the Issuer
becomes subject to Listing Rules 5.7.1 or 5.7C during the three-year period.
5.7C In the case of an Issuer whose securities are no longer admitted to trading on a Regulated
Market in its Home Member State which Member State was chosen by the Issuer in terms
of Listing Rules 5.7.1.2 or 5.7B but instead are admitted to trading in one or more other
Member States, the Home Member State shall be the Member State chosen by the Issuer
from amongst the Member States where its securities are admitted to trading on a
Regulated Market and, where applicable, the Member State where the Issuer has its
registered office.
5.7D Where Debt Securities are denominated in a currency other than the Euro, the Home
Member State shall be determined by taking into consideration the equivalent value in
Euro of the value of such such Debt Securities’ denomination per unit at the date of the
issue.
5.8 For the purposes of this Chapter, Malta shall be deemed to be the “Host Member State”
where it is not the Home Member State of the Issuer and securities are Admitted to Trading
on a Regulated Market in Malta.
5.9 Where, pursuant to these Listing Rules, the Issuer is entitled to choose its Home Member
State, the Issuer may choose only one Member State as its Home Member State.
5.10 The choice referred to in Listing Rules 5.7.1.2, 5.7B and 5.7C shall be disclosed in terms
of Listing Rule 5.246.
5.10A An Issuer shall disclose its Home Member State:
5.10A.1 to the Listing Authority, where Malta is the Home Member State;
5.10A.2 to the competent authorities of all Host Member States, if applicable;
5.10A.2 where the registered office is not in Malta, to the competent authority of the
Member State where it has its registered office, if applicable.
5.10B Where the Issuer fails to disclose its choice of Home Member State within a period of three
months from the date the Issuer’s securities are first admitted to trading on a Regulated
Market, the Home Member State shall be the Member State where the Issuer’s securities
are admitted to trading on a regulated market. Where the Issuer’s securities are admitted
to trading on regulated markets situated or operating within more than one Member State,
those Member States shall be the issuer’s Home Member States until a subsequent choice
of a single Home Member State has been made and disclosed by the Issuer.
5.11 Issuers which have only Debt Securities authorised as Admissible to Listing shall comply
with this Chapter but need not comply with the following Listing Rules of this Chapter:
Listing Rule
5.16.4 Board Decisions
5.16.8 Notification of major holdings
5.16.9 Total number of voting rights
5.16.10 Proportion of the Issuer’s holding in own equity
5.104 - 5.105 Directors’ Service Contracts
5.135- 5.144 Related Parties Transactions
5.54 Preliminary Statement of Annual Results
5.70.1 Annual Financial Report – material contracts
5.12 Issuers which have only fixed income Shares which are Admissible to Listing must comply
with this Chapter but need not comply with the following Listing Rules of this Chapter:
Listing Rule
5.104 - 5.105 Directors’ Service Contracts
5.135 – 5.144 Transactions with Related Parties
Company Announcements
5.13 The object of a Company Announcement is to bring useful and relevant facts to the attention
of the market. Issuers shall be responsible to ensure that a Company Announcement is
precise, clear and truthful, and does not contain promotional, ambiguous, irrelevant or
confusing material.
5.14 The information which is required to be published by the Issuer or a person who has applied
for admission to trading on a Regulated Market without the Issuer’s consent through a
Company Announcement shall not be disclosed to the public before it has been so
announced.
5.15 Company Announcements shall be made in the English or Maltese language without delay
through a Regulated Market.
5.16 The information which has to be disclosed by means of a Company Announcement includes,
but is not limited to, the following:
5.16.1 price-sensitive facts which arise in the Issuer’s sphere of activity and which are
not public knowledge;
5.16.2 any information concerning the Issuer or any of its Subsidiaries necessary to
avoid the establishment of a false market in its Securities;
5.16.3 the date fixed for any board meeting of the Issuer at which a dividend on
Securities Admitted to Listing is expected to be declared or recommended , or
at which any announcement of the profits or losses is to be approved;
5.16.4 any decision by the board of Directors of the Issuer relating to the declaration
or otherwise of dividends or other distributions on Securities Admitted to
Listing or relating to profits;
5.16.5 any change in the board of Directors, company secretary or any other senior
officers of the Issuer, which announcement shall contain the information
required in terms of Listing Rules 5.20 and 5.21
5.16.6 the filing of a winding-up application;
5.16.7 any resolution by the board of Directors for the merger or division of the Issuer
and any agreement entered into in connection with any acquisition or realisation
of assets or any transaction outside the ordinary course of business of the Issuer
and/or its Subsidiaries which is likely to materially affect the price of its
Securities;
5.16.8 the information contained in the notification submitted by a Shareholder in
terms of Listing Rule 5.193;
5.16.9 the total number of voting rights and capital at the end of each calendar month
during which an increase or decrease of such total number has occurred;
5.16.10 the proportion of the Issuer’s holding in its own Shares, following an acquisition
or sale of its own Shares where that proportion reaches, exceeds or falls below
the thresholds of 5% or 10% of the voting rights;
5.16.11 any material change to its capital structure including the structure of its Debt
Securities Admitted to Listing, except that notification of a new issue may be
delayed while an offer or underwriting is in progress;
5.16.12 any new issue of Debt Securities;
5.16.13 any guarantee or security provided in respect of an issue of Debt Securities,
together with a statement, where applicable, indicating where the audited
Annual Accounts of any guarantor are available to the public:
5.16.14 any change in the rights;
5.16.14.1 attaching to the various classes of Shares, including changes in the
rights attaching to derivative Securities issued by the Issuer itself and giving
access to the Shares of that Issuer;
5.16.14.2 of holders of Securities other than Shares, including changes in the
terms and conditions of these Securities which could indirectly affect those
rights, resulting in particular, from a change in loan terms or in interest rates.
5.16.15 the effect, if any, of any issue of further Securities on the terms of the exercise
of rights under options, warrants and convertible Securities;
5.16.16 the results of any new issue or Public Offer of Securities;
5.16.17 any sale of Shares in a material Subsidiary resulting in that company ceasing
to be a Subsidiary and any acquisition of shares of an unquoted Company
resulting in that company becoming a material Subsidiary;
5.16.18 all resolutions put to a general meeting of an Issuer which are not Ordinary
Business and immediately after such meeting whether or not the resolutions
were carried;
5.16.19 any decision by the board of Directors to recommend the discontinuation of
listing of the Issuer’s securities in terms of Listing Rule 1.22;
5.16.20 the matters referred to in Listing Rules 5.54 (preliminary results), 5.40 (profit
forecast) and 5.74 (half-yearly reports);
5.16.21 a statement indicating where the Annual Financial Report has been made
available to the public;
5.16.22 the choice of Home Member State that an Issuer may be entitled to make in
terms of Chapter 5;
5.16.23 the appointment of a person as both Chairman and Chief Executive Officer of
the Issuer;
5.16.24 where the board of Directors determines that the results in respect of any
published financial information materially differ by ten percent (10%) or more
from any published forecast or estimate or financial projections by the Issuer,
in which case the company announcement must contain an explanation of such
difference; and
5.16.25 the matters referred to in Listing Rule 5.174.2.
5.17 The Company Announcement containing the information prescribed by Listing Rule
5.16.10 shall be made by not later than four trading days following the acquisition or sale.
The proportion of the Issuer’s holding in its own shares shall be calculated on the basis of
the total number of Equity Securities to which voting rights are attached.
5.18 Without prejudice to the Prevention of Market Abuse Act, Listing Rules 5.16.12 and 5.16.13
shall not apply to a public international body of which at least one Member State is a
member.
Exemption
5.19 Should the Issuer consider that announcements and/or disclosure to the public of information
required by these Listing Rules might prejudice the Issuer’s legitimate interests, the Issuer
may seek an exemption from the relevant requirement by notice in writing to the Listing
Authority:
Provided that this Listing Rule shall not apply to announcements and/or disclosure to the
public of Regulated Information.
Officers of the Issuer
5.20 A Company Announcement made in terms of Listing Rule 5.16.5 shall contain the following
information in respect of any new Director appointed to its board of Directors, company
secretary or any other senior officer, unless such details have already been disclosed in a
Prospectus or other Circular published by the Issuer in the immediately preceding twelve
months:
5.20.1 the full name and, if relevant, any former name or names, residential address
and function in the Issuer and an indication of the principal activities performed
by them outside the Issuer where these are significant with respect to the Issuer;
5.20.2 details of all Directorships held by such Director or senior officer in any other
Issuer at any time in the previous five (5) years, indicating whether or not the
individual is still a Director;
5.20.3 the effective date of change or a statement that the effective date is not yet
known or has not yet been determined. In the latter case, the effective date of
change should be announced by the Issuer once it is known;
5.20.4 in the case of an appointment of a Director, a statement indicating the nature of
any specific function or responsibility of the position and whether the position
is executive or non-executive;
5.20.5 any pending criminal proceedings in respect of any crimes affecting public trust
or theft or of fraud or of knowingly receiving property obtained by theft or
fraud;
5.20.6 details of any discharged bankruptcies over the last five years;
5.20.7 details of any creditors’ voluntary winding-up, winding-up by the court or
reconstruction of any Company or other commercial partnership where such
person was a partner or Director with an executive function at the time of or
within the twelve (12) months preceding such events;
5.20.8 details of any public criticisms of such person by statutory or regulatory
authorities, including recognised professional bodies, which have not been
subsequently withdrawn by the relevant authority or body and whether such
person has ever been disqualified by law or by a court from acting as a Director
of a Company or from acting in the management or conduct of the affairs of
any Body Corporate; and
5.20.9 whether such person was the subject of any order, judgement or ruling of any
court of competent jurisdiction, tribunal or any other regulatory authority in
Malta or overseas, permanently or temporarily prohibiting him from engaging
in any type of business practice or activity.
5.21 Should there be no information to be disclosed in terms of Listing Rules 5.20.5 to 5.20.9, an
appropriate negative statement to that effect shall be made.
Rights of Holders of Securities
5.22 An Issuer having Equity Shares authorised as Admissible to Listing shall ensure equality of
treatment for all holders of such Equity Shares who are in the same position.
5.23 An Issuer having Debt Securities authorised as Admissible to Listing shall ensure equality
of treatment for all holders of such Securities of the same Class in respect of all rights
attaching to such Securities.
5.24 An Issuer must obtain the consent of the holders of its Equity Shares before any major
Subsidiary Undertaking of the Issuer makes any issue for cash of Equity Securities so as
materially to dilute the Issuer’s percentage interest in Equity Shares or Equity Securities of
that Subsidiary Undertaking.
5.25 Shareholders shall not be prevented from exercising their rights by proxy, subject to the law
of the country in which the Issuer is incorporated.
Proxy Forms
5.26 A proxy form must:
5.26.1 be sent with the notice convening a meeting of holders of Securities authorised
as Admissible to Listing to each person entitled to vote at the meeting;
5.26.2 provide for two-way voting on all resolutions intended to be proposed (except
that it is not necessary to provide proxy forms with two-way voting on
procedural resolutions);
5.26.3 state that a holder of security is entitled to appoint a proxy of his own choice
and provide a space for insertion of the name of such proxy; and
5.26.4 state that if it is returned without an indication as to how the proxy shall vote
on any particular matter, the proxy will exercise his discretion as to whether,
and if so, how he votes.
5.27 Where the resolutions to be proposed include the re-election of retiring Directors, the proxy
form must allow shareholders to vote for individual candidates irrespective of whether they
are new candidates or retiring incumbents of the post.
Information requirements for Issuers whose shares are Admitted to Trading on a Regulated
Market
5.28 An Issuer shall ensure that all the facilities and information necessary to enable holders of
shares to exercise their rights are available in Malta, where Malta is the Home Member State
and that the integrity of data is preserved.
5.29 The Issuer shall;
5.29.1 provide information on the place, time and agenda of meetings, the total number
of shares and voting rights and the rights of holders entitled to participate in
meetings;
5.29.2 make available a proxy form in terms of Listing Rules 5.26. and 5.27, on paper
or, where applicable, by Electronic Means, to each person entitled to vote at a
shareholders’ meeting, together with the notice concerning the meeting or, on
request, after an Announcement of the meeting;
5.29.3 designate as its agent a financial or credit institution through which such
shareholder may exercise his financial rights; and
5.29.4 publish notices or distribute Circulars concerning the allocation and payment of
dividends and the issue of new shares, including information on any
arrangements for allotment, subscription, cancellation or conversion.
5.30 If a Circular is issued to the holders of any particular Class of Security, the Issuer must issue
a copy or summary of that Circular to all other holders of its Securities which are authorised
as Admissible to Listing unless the contents of that Circular are irrelevant to them.
5.31 The Issuer’s obligation of circulating any Regulated Information to shareholders other than
the Annual Accounts shall be duly satisfied if the Issuer sends a notice to the registered
address of each Shareholder by means of the postal service advising that such information
has been posted on a website designated therein and that such document is available in
printed format upon written request made by any shareholder.
5.32 The Issuer shall use Electronic means to circulate Regulated Information other than the
Annual Accounts, provided such a decision is taken at a general meeting and meets at least
the following conditions:
5.32.1 the use of Electronic means shall in no way depend upon the location of the seat
or residence of the Shareholder or, in the cases referred to in Listing Rule 5.182,
of the natural persons or Legal Entities;
5.32.2 identification arrangements shall be put in place so that the shareholders, or the
natural persons or Legal Entities entitled to exercise or to direct the exercise of
voting rights, are effectively informed;
5.32.3 shareholders, or in the cases referred to in Listing Rule 5.182, the natural
persons or Legal Entities entitled to acquire, dispose of or exercise voting rights,
shall be contacted in writing to request their consent for the use of Electronic
means for conveying information and, if they do not object within a reasonable
period of time, their consent shall be deemed to be given. They shall be able to
request, at any time in the future, that information be conveyed in writing; and
5.32.4 any apportionment of the costs entailed in the conveyance of such information
by Electronic means shall be determined by the Issuer in compliance with the
principle of equal treatment.
Information requirements & venue for Issuers whose Debt Securities are Admitted to
Trading on a Regulated Market
5.33 An Issuer of Debt Securities shall ensure that all the facilities and information necessary to
enable Debt Securities holders to exercise their rights are publicly available in Malta, when
Malta is the Home Member State and the integrity of data is preserved.
5.34 Debt Securities holders shall not be prevented from exercising their rights by proxy, subject
to the law of country in which the Issuer is incorporated.
5.35 The Issuer shall, where applicable -
5.35.1 publish notices or distribute Circulars concerning the place, time and agenda of
meetings of Debt Securities holders, the payment of interest, the exercise of any
conversion, exchange, subscription or cancellation rights, and repayment, as
well as the right of those holders to participate therein;
5.35.2 make available a proxy form in terms of Listing Rules 5.26 and 5.27 on paper
or by electronic means, to each person entitled to vote at a meeting of Debt
Securities holders, together with the notice concerning the meeting or, on
request , after an Announcement of the meeting; and
5.35.3 designate as its agent a financial or credit institution through which the Debt
Securities holder may exercise his financial rights.
5.36 If only holders of Debt Securities whose denomination per unit amounts to at least hundred
thousand Euro (€100,000) or, in the case of Debt Securities denominated in currency other
than Euro whose denomination per unit is, at the date of the issue, equivalent to at least
hundred thousand Euro (€100,000), are to be invited to a meeting, the Issuer may choose
as venue any Member or EEA State, provide that all the facilities and information necessary
to enable such holders to exercise their rights are made available in that Member or EEA
State.
5.37 For the purposes of conveying Regulated Information to Debt Securities holders, the Issuer
shall use Electronic Means, provided such a decision is taken at a general meeting and meets
at least the following conditions:
5.37.1 the use of Electronic means shall in no way depend upon the location of the seat
or residence of the debt security holder or of a proxy representing that holder;
5.37.2 identification arrangements shall be put in place so that Debt Securities holders
are effectively informed;
5.37.3 Debt Securities holders shall be contacted in writing to request their consent for
the use of Electronic means for conveying information and if they do not object
within a reasonable period of time, not exceeding fourteen (14) days, their
consent shall be deemed to be given. They shall be able to request, at any time
in the future, that information be conveyed in writing; and
5.37.4 any apportionment of the costs entailed in the conveyance of information by
Electronic means shall be determined by the Issuer in compliance with the
principle of equal treatment.
5.38 The provisions of Listing Rules 5.16.12, 5.35, 5.36 and 5.37 shall not apply to securities
Admitted to Trading on a Regulated Market issued by Member or EEA States or their
regional or local authorities.
Periodic financial reporting
5.39 Where an Issuer publishes financial information in cases other than those provided for in
these Listing Rules, the Issuer shall comply with generally accepted accounting principles
and practice as defined by the Accountancy Profession Act or regulations issued in terms
thereof.
Profit Forecasts and Estimates
5.40 Whenever a profit forecast or estimate is made by an Issuer it must contain:-
5.40.1 a statement setting out the principal assumptions upon which the Issuer has based
its forecast or estimate and clearly distinguishing between assumptions about
factors which the Directors of the Issuer can influence and assumptions about
factors which are exclusively outside the influence of the Directors; and
5.40.2 a report prepared by independent Accountants or Auditors stating that in their
opinion the forecast or estimate has been properly compiled on the basis stated
and that the basis of accounting used for the profit or estimate is consistent with
the accounting policies of the Issuer.
5.41 The assumptions referred to in Listing Rule 5.40.1 must be readily understandable by
investors, be specific and precise and not relate to the general accuracy of the estimates
underlying the profit forecast.
5.42 The profit forecast or estimate must be prepared on a basis comparable with the historical
financial statements published by the Issuer.
Pro Forma Financial Information
5.43 If an Issuer publishes pro forma financial information, that information must be presented
in the manner laid down by Listing Rule 5.47.
5.44 The pro forma financial information must include a description of the transaction, the
businesses or entities involved and the period to which it refers, and must clearly state the
following:
5.44.1 the purpose for which it has been prepared;
5.44.2 that it has been prepared for illustrative purposes only; and
5.44.3 that because of its nature, the pro forma financial information addresses a
hypothetical situation and, therefore, does not represent the Issuer’s actual
financial position or results.
5.45 In order to present pro forma financial information, a balance sheet and profit and loss
account, and accompanying explanatory notes, depending on the circumstances, may be
included.
5.46 The pro forma financial information must also provide investors with information about
the impact of the transaction the subject of the document by illustrating how that
transaction might have affected the financial information presented in the document had
the transaction been undertaken at the commencement of the period being reported on or,
in the case of a pro forma balance sheet or net asset statement, at the date reported. The
pro forma financial information presented must not be misleading, must assist investors in
analysing the future prospects of the Issuer and must include all appropriate adjustments
permitted by Listing Rule 5.51, of which the Issuer is aware, necessary to give effect to
the transaction as if the transaction had been undertaken at the commencement of the
period being reported on or, in the case of a pro forma balance sheet or net asset statement,
at the date reported on.
5.47 The pro forma information must be presented in columnar format showing separately the
historical unadjusted financial information, the pro forma adjustments and the resulting pro
forma financial information in the final column. The sources of the pro forma financial
information have to be stated and, if applicable, the financial statements of the acquired
businesses or entities must be included.
5.48 The pro forma financial information must be prepared in a manner consistent with both the
format and accounting policies adopted by the Issuer in its last or next financial statements
and must identify:
5.48.1 the basis upon which it is prepared; and
5.48.2 the source of each item of information and adjustment.
Pro forma figures must be given no greater prominence in the document than audited
figures.
5.49 Pro forma financial information may only be published in respect of:
5.49.1 the current Financial Year;
5.49.2 the most recently completed Financial Year; and/ or
5.49.3 the most recent interim period for which relevant unadjusted information has
been or will be published or is being published in the same document;
and, in the case of a pro forma balance sheet or net asset statement, as at the date on which
such periods end or ended.
5.50 The unadjusted information must be derived from the most recent:
5.50.1 audited published Accounts or preliminary statement;
5.50.2 Accountants’ Report or comparative table;
5.50.3 previously published pro forma financial information reported on in
accordance with Listing Rule 5.52; or
5.50.4 published profit forecast or estimate.
5.51 Pro forma adjustments related to the pro forma financial information must be:
5.51.1 clearly shown and explained;
5.51.2 directly attributable to the transaction concerned and not relating to future
events or decisions;
5.51.3 factually supportable; and
5.51.4 in respect of a pro forma profit or cash flow statement, clearly identified as to
those adjustments which are expected to have a continuing impact on the Issuer
and those which are not.
5.52 The pro forma financial information must be accompanied by a report prepared by
independent accountants or auditors who must report that, in their opinion:
5.52.1 the pro forma financial information has been properly compiled on the basis
stated;
5.52.2 such basis is consistent with the accounting policies of the Issuer; and
5.52.3 the adjustments are appropriate for the purposes of the pro forma financial
information as disclosed pursuant to Listing Rule 5.46.
5.53 Where pro forma earnings per Share information is given for a transaction which includes
the issue of Securities, the calculation should be based on the weighted average number of
Shares outstanding during the period, adjusted as if that issue had taken place at the
beginning of the period.
Preliminary Statement of Annual Results
5.54 If an Issuer publishes a preliminary statement of annual results it shall include:
5.54.1 a condensed balance sheet;
5.54.2 a condensed income statement;
5.54.3 a condensed statement of changes in equity;
5.54.4 a condensed cash flow statement;
5.54.5 explanatory notes and any significant additional information necessary of the
purpose of assessing the results being announced;
5.54.6 a statement that the annual results have been agreed with the Auditors and if
the Auditors’ report is likely to be qualified, give details of the nature of the
qualification; and
5.54.7 any decision to pay or make any dividend or other distribution on Equity
Securities authorised as Admissible to Listing or to withhold any dividend or
interest payment on Securities authorised as Admissible to Listing giving
details of:
5.54.7.1 the exact net amount payable per Share;
5.54.7.2 the payment date; and
5.54.7.3 the cut off date when the Register is closed for the purpose of
distribution
Annual Financial Report
5.55 The Annual Financial Report shall include:
5.55.1 the annual financial statements together with the Directors’ Report or
equivalent report and the auditors’ report thereon;
5.55.2 a statement of responsibility, provided that the requirement to include such a
statement shall apply to Annual Financial Report relating to financial periods
commencing on or after 1 January 2007;
5.55.3 a report by the Directors on the compliance by the Issuer with the Code of
principles for Good Corporate Governance as required by Listing Rule 5.97;
5.55.4 the information prescribed by Listing Rule 5.70;
5.55.5 a report by the auditors on the compliance by the Issuer with the Code of
principles for Good Corporate Governance; and
5.56 An Issuer must ensure that its Annual Financial Report is made available to the public as
soon as it has been approved by the Directors. The Annual Financial Report shall be
approved and made available to the public by not later than four (4) months after the end
of each financial year, and shall remain publicly available for a period of at least ten (10)
years.
Annual financial statements
5.57 If an Issuer is required to prepare Consolidated Accounts, the annual financial statements
shall comprise:
5.57.1 consolidated accounts prepared according to international accounting
standards as adopted by the EU; and
5.57.2 annual accounts of the parent company prepared in accordance with the
national law of the Member State in which the parent company is registered or
incorporated.
5.58 If an Issuer is not required to prepare consolidated accounts, the annual financial
statements shall comprise accounts prepared in accordance with the national law of the
Member State in which the Issuer is registered or incorporated.
Annual financial statements of guarantors
5.59 The annual financial statements of any guarantor referred to in Listing Rule 5.16.13 shall
be drawn up as follows:
5.59.1 where the guarantor is a company registered in Malta, it shall prepare its
Annual Financial Statements in accordance with Generally Accepted
Accounting Principles and Practice;
5.59.2 where the guarantor is a Company registered in a non-EU Member or EEA
State, it shall prepare its Annual Financial Statements in accordance with
Generally Accepted Accounting Principles and Practice or with national
accounting standards which are equivalent to these standards. If the national
accounting standards are not equivalent to these standards, the financial
information must be presented in the form of restated financial statements.
5.60 Listing Rules 5.71, 5.72 and 5.73 shall also apply to the annual financial statements of a
guarantor.
5.61 The annual financial statements of a guarantor shall be approved and made available to the
public within the period prescribed by Listing Rule 5.56.
The Directors’ Report
5.62 If the Issuer is a company registered in Malta, the Directors’ Report shall be drawn up in
accordance with the CA and should contain a statement by the Directors that the business
is a going concern with supporting assumptions or qualifications as necessary; such
statement to be reviewed by the Auditors before publication;
5.63 If the Issuer is not a company registered in Malta but Malta is its Home Member State, the
Directors’ Report shall be drawn up in accordance with Article 46 of Directive 78/660/EEC
and if the Issuer is required to prepare consolidated accounts in accordance with Article 36
of Directive 83/349/EEC.
5.64 In the case of an Issuer established as a limited liability company and having listed
Securities carrying voting rights, the Directors’ Report shall indicate the following
information:
5.64.1 the structure of its Capital, including securities which are not Admitted to
Trading on a Regulated Market in a Member State, where appropriate with an
indication of the different Classes of shares and, for each Class of shares, the
rights and obligations attaching to it and the percentage of total share capital
that it represents;
5.64.2 any restrictions on the transfer of securities, such as limitations on the holding
of securities or the need to obtain the approval of the Company or other holders
of securities;
5.64.3 any direct and indirect shareholdings, including indirect shareholdings through
pyramid structures and cross-shareholdings, in excess of 5% of the share
Capital;
5.64.4 the holders of any securities with special control rights and a description of
those rights;
5.64.5 the system of control of any employee share scheme where the control rights
are not exercised directly by the employees;
5.64.6 any restriction on voting rights, such as limitations of the voting rights of
holders of a given percentage or number of votes, deadlines for exercising
voting rights, or systems whereby, with the company’s cooperation, the
financial rights attaching to securities are separated from the holding of
securities;
5.64.7 any agreements between shareholders which are known to the Company and
may result in restrictions on the transfer of securities and/or voting rights;
5.64.8 the rules governing the appointment and replacement of Directors and the
amendment of the Memorandum and Articles of Association;
5.64.9 the powers of the Directors, and in particular the power to issue or buy back
shares;
5.64.10 any significant agreement to which the Company is a party and which take
effect, alter or terminate upon a change of control of the Company following a
takeover bid, and the effects thereof, except where their nature is such that their
disclosure would be seriously prejudicial to the Company and this without
prejudice to duty of the Company to disclose such information on the basis of
other legal requirements;
5.64.11 any agreements between the Company and its Directors or employees
providing for compensation if they resign or are made redundant without valid
reason or if their employment ceases because of a takeover bid.
5.65 The Board shall present an explanatory report to the Annual General Meeting of
shareholders on the matters referred to above.
5.66 The provisions of Listing Rules 5.64 and 5.65 shall apply to accounting periods
commencing on or after 20 May 2006
Statement of Responsibility
5.67 The statement of responsibility referred to in Listing Rule 5.55.2 shall be made by the
Directors of the Issuer, or in the case where the Issuer is not a Company, by the persons
responsible within the Issuer.
5.68 The statement of responsibility must set out that, to the best of the knowledge of the person
or persons making the statement:
5.68.1 the financial statements, prepared in accordance with the applicable
accounting standards, give a true and fair view of the assets, liabilities,
financial position and profit or loss of the Issuer and the undertakings included
in the consolidation taken as a whole; and
5.68.2 the Directors’ report includes a fair review of the performance of the business
and the position of the Issuer and the undertakings included in the
consolidation taken as a whole, together with a description of the principal
risks and uncertainties that they face.
5.69 The name and function of each of the persons responsible for making the statement of
responsibility must be clearly indicated in the said statement.
5.70 The Annual Financial Report shall also contain the following:-
5.70.1 the nature and details of any material contract together with the names of the
parties to the contract, irrespective of whether the transaction is a related party
transaction or not, subsisting during the period under review, to which the
Issuer, or one of its Subsidiary Undertakings, is a party and in which a Director
of the Issuer is or was directly or indirectly interested; and
5.70.2 the name of the company secretary of the Issuer, the registered address and
any other relevant contact details of the Issuer.
Audit report on the financial statements
5.71 If the Issuer is a company registered in Malta, the financial statements shall be audited in
accordance with the CA.
5.72 If the Issuer is not a company registered in Malta but Malta is its Home Member State, the
financial statements shall be audited in accordance with Articles 51 and 51a of Directive
78/660/EEC and if the Issuer is required to prepare consolidated accounts in accordance
with Article 37 of Directive 83/349/EEC.
5.73 The audit report shall be signed by the person or persons responsible for auditing the
financial statements and shall be published in full together with the Annual Financial
Report.
Issuers active in the extractive or logging of primary forest industries
5.73A In the case of issuers active in the extractive or logging of primary forest industries, as
defined in Article 41(1) and (2) of Directive 2013/34/EU of the European Parliament and
of the Council of 26 June 2013 on the annual financial statements, consolidated financial
statements and related reports of certain types of undertakings, amending Directive
2006/43/EC of the European Parliament and of the Council and repealing Council
Directives 78/660/EEC and 83/349/EEC, the Issuer shall prepare a report on payments
made to governments. The report shall be made public at the latest six (6) months after the
end of each financial year and shall remain publicly available for at least ten (10) years.
Payments to governments shall be reported at consolidated level.
Half-Yearly Report
5.74 The Issuer of shares or debt securities shall make public a half-yearly financial report
covering the first six months of each financial year.
5.75 The half-yearly financial report shall contain at least the following items:
5.75.1 the condensed set of financial statements;
5.75.2 an interim directors’ report, provided that the requirements of an interim
directors’ report in terms of Listing Rules 5.81 to 5.84 and a statement in terms
of Listing Rule 5.75.3, shall apply to half-yearly financial reports relating to
financial periods commencing on or after 1 January 2007;
5.75.3 statements made by the persons responsible within the Issuer, whose names
and functions shall be clearly indicated, to the effect that, to the best of their
knowledge, the condensed set of financial statements which has been prepared
in accordance with the applicable set of accounting standards gives a true and
fair view of the assets, liabilities, financial position and profit or loss of the
issuer, or the undertakings included in the consolidation as a whole and that
the interim directors report includes a fair review of the information required
in terms of Listing Rules 5.81 to 5.84;
5.75.4 when the half-yearly financial report has been audited or reviewed, the
Auditors’ report shall be reproduced in full, together with any reasoned
qualifications which may have been made; and
5.75.5 if the half-yearly financial report has not been audited or reviewed, the Issuer
shall make a statement to that effect in its report.
Condensed set of financial statements
5.76 Where the Issuer is required to prepare Consolidated Accounts in accordance with
Generally Accepted Accounting Principles, the condensed set of financial statements
referred to in Listing Rule 5.75.1 shall be prepared in accordance with the international
accounting standard applicable to interim financial reporting as adopted by the EU.
5.77 Where the Issuer is not required to prepare Consolidated Accounts, the condensed set of
financial statements shall at least contain:
5.77.1 a condensed balance sheet;
5.77.2 a condensed profit and loss account;
5.77.3 explanatory notes on these accounts.
5.77.4 a condensed statement of cash flows; and
5.77.5 a condensed statement of changes in equity
Provided that when preparing the condensed balance sheet and the condensed profit and
loss account, the Issuer shall follow the same principles for recognition and measurement
as when preparing annual audited financial statements.
5.78 The condensed balance sheet and the condensed profit and loss account referred to in
Listing Rules 5.77.1 and 5.77.2 shall show each of the headings and subtotals included in
the most recent annual financial statements of the Issuer. Additional line items shall be
included if, as a result of their omission, the half-yearly financial statement would give a
misleading view of the assets, liabilities, financial position and profit or loss of the Issuer.
5.79 The condensed set of financial statements prepared in terms of Listing Rule 5.77 shall also
contain the following comparative information:
5.79.1 a balance sheet as at the end of the first six months of the current financial year
and a comparative balance sheet as at the end of the immediate preceding year;
5.79.2 a profit and loss account for the first six months of the current financial year
and with effect from 1st March 2009, comparative information for the
comparable period for the preceding financial year.
5.80 The explanatory notes referred to in Listing Rule 5.77.3 shall include the following:
5.80.1 sufficient information to ensure the comparability of the half-yearly financial
statement with the annual financial statement;
5.80.2 Sufficient information and explanations to ensure a user’s proper
understanding of any material changes in amounts and of any developments in
the half-year period concerned, which are reflected in the balance sheet and the
profit and loss account.
Interim Directors’ Report
5.81 The Interim Directors’ Report shall include at least an indication of important events that
have occurred during the first six months of the financial year, and their impact on the
condensed set of financial statements, together with a description of the principal risks and
uncertainties for the remaining six months of the financial year.
5.82 In the Interim Directors’ Report, Issuers of shares shall at least disclose as major related
parties’ transactions:
5.82.1 related parties’ transactions that have taken place in the first six months of the
current financial year and that have materially affected the financial position
or performance of the Issuer during that period;
5.82.2 any changes in the related parties’ transactions described in the last Annual
Financial Report that could have a material effect on the financial position or
performance of the Issuer in the first six months of the current financial year.
5.83 Where the Issuer of shares is not required to prepare Consolidated Accounts, it shall
disclose, as a minimum, the following information with respect to material related party
transactions which have not been concluded under normal market conditions:
5.83.1 the amount of such transactions;
5.83.2 the nature of the related party relationship; and
5.83.3 other information about the transactions necessary for an understanding of the
financial position of the Issuer.
5.84 In relation to the transactions referred to in Listing Rule 5.83 information about individual
related party transaction may be aggregated according to their nature except where separate
information is necessary for an understanding of the effects of related party transactions on
the financial position of the Issuer.
5.85 The half-yearly financial report shall be made available to the public as soon as it has been
approved by the Directors. Such report shall be approved and made available to the public
as soon as possible after the end of the relevant period, but not later than two months
thereafter. The Issuer shall ensure that the half-yearly financial report remains available to
the public for at least ten (10) years.
Report on payments to governments
5.86 The Listing Authority shall require issuers active in the extractive or logging of primary
forest industries as defined in Article 41(1) and (2) of Directive 2013/34/EU of the
European Parliament and of the Council of 26 June 2013 on the annual financial
statements, consolidated financial statements and related reports of certain types of
undertakings, amending Directive 2006/43/EC of the European Parliament and of the
Council and repealing Council Directives 78/660/EEC and 83/349/EEC (*), to prepare on
an annual basis, in accordance with Chapter 10 of that Directive, a report on payments
made to governments. The report shall be made public at the latest six months after the end
of each financial year and shall remain publicly available for at least 10 years. Payments
to governments shall be reported at consolidated level.
5.87 Omissis
5.88 Omissis
Exemptions
5.89 The obligation to draw up and make available to the public the Annual Financial Report
and the Half-Yearly Report shall not apply to:
5.89.1 a State, a regional or local authority of a State, a public international body of
which at least one Member State is a member, the European Central Bank, the
European Financial Stability Facility established by the EFSF Framework
Agreement and any other mechanism established with the objective of
preserving the financial stability of European monetary union by providing
temporary financial assistance to the Member States whose currency is
the euro and Member States’ national central banks whether or not they
issue shares or other securities ; and
5.89.2 an Issuer exclusively of Debt Securities admitted to trading on a Regulated
Market, the denomination per unit of which is at least hundred thousand Euro
(€100,000) or, in the case of Debt Securities denominated in a currency other
than Euro, the value of such denomination per unit is, at the date of the issue,
equivalent to at least hundred thousand Euro (€100,000).
5.90 The obligation to draw up and make available to the public the Half-Yearly Report shall
not apply to;
5.90.1 Credit Institutions whose shares are not Admitted to Trading on a Regulated
Market and which have, in a continuous or repeated manner, only issued Debt
Securities provided that the total nominal amount of all such Debt Securities
remains below One hundred million Euro (€100,000,000) and that they have
not published a Prospectus in terms of the Prospectus Directive;
5.90.2 Issuers already existing at the date of the entry into force of the Prospectus
Directive which exclusively issue Debt Securities unconditionally and
irrevocably guaranteed by the Home Member State or by one of its regional or
local authorities, on a Regulated Market.
Change of Accounting Reference Date
5.91 If an Issuer which has Securities authorised as Admissible to Listing changes its accounting
reference date it must notify the Listing Authority without delay of the new accounting
reference date. If the effect of the change in the accounting reference date is to extend the
accounting period to more than fourteen (14) months, the Issuer must prepare and publish
a second interim report in accordance with the provisions of 5.74 to 5.84 in respect of either
the period up to the old accounting reference date or the period up to a date not more than
six (6) months prior to the new accounting reference date.
Corporate Governance
5.92 For the purposes of this section:
“national law” means the law of the country where the registered office of the Issuer is
established.
An Issuer whose securities are Admitted to Trading on a Regulated Market operating in
Malta shall prepare a corporate governance statement in terms of Listing Rule 5.97.
5.93 This section is not applicable to Collective Investment Schemes, other than the closed-ended
type.
5.94 An Issuer registered in Malta and having securities Admitted to Trading on a Regulated
Market operating in Malta should endeavour to adopt the Code of Principles of Good
Corporate Governance contained in Appendix 5.1 to this Chapter and shall prepare a report
explaining how it has complied with the provisions of the said Appendix. The same rule
shall also apply to an Issuer whose securities are only Admitted to Trading on a Regulated
Market in Malta.
5.95 An Issuer not registered in Malta but whose securities are Admitted to Trading on a
Regulated Market operating in Malta as well as on a Regulated Market operating in one or
more EEA States shall have the option to report on its compliance either with Appendix 5.1
or with any other code of corporate governance to which it may be subject.
5.96 An Issuer not registered in Malta but whose securities are Admitted to Trading on a market
operating in a non-EEA state as well as on a Regulated Market operating in Malta shall
report on its compliance with the code of corporate governance to which it is subject and
highlight, in its report, the significant ways in which its corporate governance regime differs
from Appendix 5.1, unless the Listing Authority determines otherwise following the
submission of an application by such Issuer to that effect.
5.97 Issuers shall include in a specific section of their Annual Financial Report a corporate
governance statement which shall contain at least the following information:
5.97.1 a reference to the corporate governance code to which the Issuer is subject;
and/or a reference to the corporate governance code which it may have
voluntarily decided to apply, together with an indication of the place where the
texts are available to the public; and/or
5.97.2 all relevant information about the corporate governance practices applied
beyond the requirements under national law;
5.97.3 to the extent to which an Issuer departs from a corporate governance code
referred to in Listing Rule 5.97.1, an explanation by the Issuer as to which parts
of the corporate governance code it has departed from and the reasons for doing
so and where the Issuer has decided not to apply any provisions of a corporate
governance code referred to in Listing Rule 5.97.1, it shall explain its reasons
for doing so;
5.97.4 a description of the main features of the Issuer’s internal control and risk
management systems in relation to the financial reporting process;
5.97.5 the information referred to in Listing Rules 5.64.3, 5.64.4, 5.64.6, 5.64.8 and
5.64.9, where the Issuer is subject to Directive 2004/25/EC of the European
Parliament and of the Council of 21 April 2004 on takeover bids;
5.97.6 the manner in which the general meeting is conducted and its key powers
together with a description of shareholders’ rights and how they can be
exercised; and
5.97.7 the composition and operation of the board of Directors or equivalent body, of
the audit committee and of any other committee that may be established by the
board.
5.98 The Issuer’s Auditors are to include a report in the Annual Financial Report to shareholders
on the corporate governance statement.
5.99 An Issuer may elect to set out the information required by Listing Rule 5.97 in a separate
report published together with the annual report or by means of a reference in the annual
report where such document is publicly available on the Issuer’s website. In the event of a
separate report, the corporate governance statement may contain a reference to the annual
report where the information required in Listing Rules 5.97.4 and 5.97.5 is made available.
5.100 Where the corporate governance statement is contained in a separate report, such statement
shall include the Auditors’ report referred to in Listing Rule 5.98 and, in addition to this,
the Issuer’s Auditors shall express an opinion concerning the consistency or otherwise of
the information referred to in Listing Rules 5.97.4 and 5.97.5 with the Annual Financial
Report for the same financial year. For the remaining information that is required to be
disclosed under Listing Rule 5.97, the Auditors shall check that the corporate governance
statement has been produced.
5.101 Issuers that only issue Securities other than Equity Securities shall be exempt from the
requirement to disclose in their corporate governance statement the information prescribed
by Listing Rules 5.97.1 to 5.97.3, 5.97.6 and 5.97.7, unless such Issuers have issued Equity
Securities which are traded in a multilateral trading facility in terms of Article 4(1), point
(15) of Directive 2004/39/EC.
5.102 No person may act as a Director of an issuer of a listed security if the person concerned is
already acting as a director, partner or employee and is authorised to provide investment
advice and/or portfolio management in terms of Part B of the Investment Services Rules for
Investment Services Providers in an entity licenced in terms of the Investments Services Act.
5.103 Without prejudice to the requirement of Listing Rule 5.102, a Director of an Issuer who is
also a director of an entity licenced in terms of the Investments Services Act, shall not discuss
with or provide any information relating to the securities or the affairs of:
5.103.1 the Issuer of which s/he is a director, or
5.103.2 any other Issuer of a listed security which has a close business relationship
with the Issuer of which s/he is a director;
to any director, partner or employee who is authorised to provide investment advice and/or
portfolio management services in the same entity licenced in terms of the Investments
Services Act of which the Director of an Issuer is also a director.
Disclosure of service contracts entered into between the Issuer and its Directors
5.104 Copies of service contracts entered into by Directors with the Issuer shall be made available
for inspection by any person entitled to receive notice of general meetings:
5.104.1 at the place of the annual general meeting for at least fifteen (15) minutes prior
to and during the meeting; and
5.104.2 at the registered or head office of the Issuer.
5.105 Directors’ service contracts available for inspection must disclose or have attached to them
the following information;
5.105.1 the name of the contracting parties;
5.105.2 the date of the contract, the unexpired term and details of any notice periods;
5.105.3 full particulars of the Directors’ emoluments, including salary and all other
benefits;
5.105.4 any commission or profit sharing arrangements;
5.105.5 any provision for compensation payable upon early termination of the contract;
and
5.105.6 details of any other arrangements which are necessary to enable investors to
estimate the possible liability of the Issuer upon early termination of the
contract.
Transactions by Directors and Officers of Issuers
5.106 Subject to Listing Rule 5.105 below, an Issuer must require:
5.106.1 its Directors or Directors of its Subsidiary or Parent Undertaking; and
5.106.2 any of its Officers or employees or an Officer or employee of its Subsidiary or
Parent Undertaking who, because of his office or employment in the Issuer or
Subsidiary Undertaking or Parent Undertaking, is likely to be in possession of
unpublished price-sensitive information in relation to the Issuer
(hereinafter referred to as “Restricted Persons”)
to comply with an internal code of dealing which must be no less exacting than those of
Listing Rules 5.109 to 5.116 below and must take all proper and reasonable steps to ensure
such compliance.
5.107 Listing Rule 5.106 does not apply if such dealings are entered into by such persons:
5.107.1 in the ordinary course of business by a Securities dealing business; or
5.107.2 on behalf of third parties by the Issuer or any other member of its Group.
5.108 Issuers may impose more rigorous restrictions upon dealings by Restricted Persons if they
so wish.
5.109 A Restricted Person shall not deal directly or indirectly in any of the Securities of the Issuer:
5.109.1 at any time when he is in possession of unpublished price-sensitive information
in relation to those Securities;
5.109.2 prior to the Announcement of matters of an exceptional nature involving
unpublished price-sensitive information in relation to the market price of the
Securities of the Issuer;
5.109.3 on considerations of a short-term nature;
5.109.4 without giving advance written notice to the Chairman, or one or more other
Directors designated for this purpose. In his own case, the Chairman, or such
other designated Director, shall not deal without giving advance notice to the
board of Directors of such Company or any other designated Director as
appropriate;
5.109.5 during such other period as may be established by the Listing Authority from
time to time.
5.110 The same restrictions apply to dealings by a Restricted Person in the Securities of any other
Issuer when, by virtue of his position in the Issuer, he is in possession of unpublished price-
sensitive information in relation to those Securities.
5.111 During the period of thirty (30) days two (2) months immediately preceding any
publicationthe preliminary notification of the Issuer’s annual results, or and of the
notification of the half-yearly results or the during a period of one (1) month if the Issuer
reports the results on a quarterly basis reports (except in the final quarter of a Financial
Year when the relevant period shall be two (2) months), a Restricted Person shall not
purchase any Securities of the Issuer nor shall he sell any such Securities. unless the
circumstances are exceptional, for example where a pressing financial commitment has to
be met and this with the prior written approval of the Listing Authority. The Issuer may
allow a Restricted Person to trade on its own account or for the account of a third party
during a closed period either:
(a) on a case-by-case basis due to the existence of exceptional circumstances, such
as severe financial difficulty, which require the immediate sale of shares; or
(b) due to the characteristics of the trading involved for transactions made under, or
related to, an employee share or saving scheme, qualification or entitlement of
shares, or transactions where the beneficial interest in the relevant security does
not change.
5.112 If the approval of the Listing Authority to deal in exceptional circumstances has been
granted, the Issuer must notify the Listing Authority of such deals immediately after these
have been concluded.
5.113 The restrictions on dealings contained in this Chapter shall be regarded as equally
applicable to any dealings by any Connected Person or any Investment Manager acting on
behalf of a Restricted Person or on behalf of any Connected Person where either he or any
Connected Person has funds under management with that investment Manager, whether on
a discretionary basis or not. It is the duty of the Restricted Person (as far as is consistent
with his duties of confidentiality to his Company) to seek to prohibit any such dealing by
any Connected Person at a time when he himself is not free to deal.
5.114 Where a Restricted Person is acting as a trustee, dealing in the Securities of the Issuer by
that trustee is permitted during the period referred to in Listing Rule 5.111 where:
5.114.1 the Restricted Person is not a beneficiary of the trust; and
5.114.2 the decision to deal is taken by the other trustees or by investment managers on
behalf of the trustees independently of the Restricted Person.
5.115 The other trustees or investment managers acting on behalf of the trustees will be assumed
to have acted independently of the Restricted Person for the purpose of Listing Rule 5.114.2
where they:
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5.115.1 have taken the decision to deal without consultation with, or other involvement
of, the Restricted Person; or
5.115.2 if they have delegated the decision making to a committee of which the
Restricted Person is not a member.
5.116 No dealings in any Securities may be effected by or on behalf of an Issuer or any other
member of its Group at a time when, under the provisions of this Chapter, a Director of the
Issuer would be prohibited from dealing in its Securities, unless such dealings are entered
into:
5.116.1 in the ordinary course of business by a Securities dealing business; or
5.116.2 on behalf of third parties by the Issuer or any other member of its Group.
Audit Committee
5.117 The Issuer shall establish and maintain an audit committee which satisfies the following
criteria:
5.117.1 it should be composed entirely of non-executive Directors and having at least three
(3) members;
5.117.2 the majority of such members shall be independent of the Issuer;
5.117.3 at least one member of the audit committee shall be competent in accounting and/or
auditing; and
5.117.4 the chairman of the audit committee shall be appointed by the board of directors of
the Issuer and shall be independent of the Issuer.
5.118 It shall be the responsibility of the Board to determine who of the Directors satisfy the
competence and independence criteria set out in Listing Rule 5.117. The Board shall also
ensure that the committee members as a whole have competence relevant to the sector in
which the Issuer is operating.
5.118A The corporate governance statement required under Listing Rule 5.97 shall clearly indicate
the independent members and the member/s competent in accounting and/or auditing
together with the reasons why these members are considered by the Board as independent
and competent in accounting and/or auditing. In the said corporate governance statement
the Board shall also include the reasons why it considers that the committee members as a
whole have the relevant competence as required in Listing Rule 5.118 above.
5.119 For the purposes of this section a Director shall be considered independent only if he is free
of any business, family, or other relationship with the Issuer, its controlling shareholder or
the management of either, that creates a conflict of interest such as to impair his judgement.
The Board of the Issuer shall take into account the following situations when determining
the independence or otherwise of a director:
5.119.1 whether the director has been an executive officer or employee of the Issuer or
a subsidiary or parent of the Issuer, as the case may be, within the last three
years;
5.119.2 whether the director has, or has had within the last three years, a significant
business relationship with the Issuer either directly, or as a partner,
shareholder, director or senior employee of a body that has such a relationship
with the Issuer;
5.119.3 whether the director has received or receives significant additional
remuneration from the Issuer or any member of the Group of which the Issuer
forms part in addition to a director’s fee, such as participation in the Issuer’s
share option or a performance-related pay scheme, or membership of the
Issuer’s pension scheme, except where the benefits are fixed;
5.119.4 whether he has close family ties with any of the Issuer’s executive Directors or
senior employees;
5.119.5 whether he has served on the Board of the Issuer for more than twelve
consecutive years; or
5.119.6 whether he is or has been within the last three years an engagement partner or
a member of the audit team of the present or former external auditor of the
Issuer or any member of the group of which the Issuer forms part.
5.120 For the purposes of Listing Rule 5.119.2 “business relationship” includes the situation of a
significant supplier of goods or services (including financial, legal, advisory or consulting
services), of a significant customer, and of organisations that receive significant
contributions from the Issuer or its group.
5.121 In addition to anything contained in the Memorandum or Articles of Association of the
Issuer relating to the nomination and appointment of Directors, when the Board of the Issuer
is receiving nominations for Directors and none of the persons nominated satisfy the
independence and competence critieria referred to in Listing Rule 5.117, the Board may
nominate a person that satisfies these requirements.
5.122 If none of the persons elected as Directors of the Issuer satisfy the independence and
competence criteria prescribed by Listing Rule 5.117, the Board shall have the right to
appoint an additional Director that satisfies the said criteria. This right may only be
exercised as long as there is a vacancy in the Board and provided the maximum number of
Directors stipulated by the Memorandum and Articles of Association of the Issuer is not
exceeded.
5.123 The obligation to establish an audit committee shall not apply to:
5.123.1 an Issuer of Debt Securities which is a Subsidiary Undertaking provided that an
audit committee which is compliant with these Listing Rules and which the
Listing Authority considers to be satisfactory is set up at the ultimate Parent
Undertaking;
5.123.2 an Issuer which is a UCITS as defined in Article 1 (2) of Directive 2009/65/EC
of the European Parliament and of the Council or an alternative investment fund
as defined in Article 4 (1) (a) of Directive 2011/61/EU of the European
Parliament and of the Council;
5.123.3 an Issuer the sole business of which is to issue asset backed securities, provided
that the Issuer explains to the public, by means of a Company Announcement,
the reasons for which it considers it inappropriate to have an audit committee;
5.124 For the purposes of Listing Rule 5.123.4, “asset backed securities” means securities which:
5.124.1 represent an interest in assets, including any rights intended to assure servicing,
or the receipt or timeliness of receipts by holders of assets, of amounts payable
thereunder; or
5.124.2 are secured by assets and the terms of which provide for payments which relate
to payments or reasonable projections of payments calculated by reference to
identified or identifiable assets.
5.125
5.126 The primary purpose of the audit committee is to protect the interests of the company`s
shareholders and assist the Directors in conducting their role effectively so that the
company’s decision-making capability and the accuracy of its reporting and financial
results are maintained at a high level at all times.
5.127 Without prejudice to Listing Rule 5.117, the Issuer shall determine the terms of reference,
life span, composition, role and function of such committee and shall establish, maintain
and develop appropriate reporting procedures, provided that the main role and
responsibilities of the audit committee shall include:
5.172.1A informing the Board of Directors of the Issuer of the outcome of the statutory
audit and explaining how the statutory audit contributed to the integrity of financial
reporting and what the role of the audit committee was in that process;
5.127.1 monitoring the financial reporting process and submitting recommendations or
proposals to ensure its integrity;
5.127.2 monitoring of the effectiveness of the company’s internal quality control and
risk managements system and, where applicable, its internal audit, regarding
the financial reporting of the Issuer, without breaching its independence;
5.127.3 monitoring of the audit of the annual and consolidated financial statements, in
particular, its performance, taking into account any findings and conclusions
by the competent authority pursuant to Article 26 (6) of the Statutory Audit
Regulation;
5.127.4 reviewing the additional report prepared by the statutory auditor/s or audit
firm/s submitted to the Audit Committee in terms of Article 11 of the Statutory
Audit Regulation. The Audit Committee may disclose the additional report to
third parties in order to execute its functions in line with the terms of reference;
5.127.5 reviewing and monitoring the independence of the statutory auditors or the
audit firms in accordance with Articles 22, 22a, 22b, 24a and 24b of the
Directive 2006/43/EC on statutory audits of annual accounts and consolidated
accounts, amending Council Directive 78/660/EEC and 83/349/EEC and
repealing Council Directive 84/253/EEC and Article 6 of the Statutory Audit
Regulation and in particular the appropriateness of the provision of non-audit
services to the audited entity in accordance with Article 5 of the Statutory Audit
Regulation;
5.127.6 the responsibility for the procedure for the selection of statutory auditor/s or
audit firm/s;
5.127.7 recommending the statutory auditor/s or the audit firm/s to be appointed in
accordance with Article 16 of the Statutory Audit Regulation.
5.128 The Issuer shall ensure that the Audit Committee establishes internal procedures and shall
monitor these on a regular basis.
5.129 The external Auditor shall report to the audit committee on key matters arising from the
audit, and in particular on material weaknesses in internal control in relation to the financial
reporting process.
5.130 The audit committee shall establish and maintain access between the internal and external
Auditors of the Company and shall ensure that this is open and constructive.
5.131 The audit committee shall meet at least four times a year. The head of Internal Audit should
attend the meetings of this Committee.
5.132 When the audit committee`s monitoring and review activities reveal cause for concern or
scope for improvement, it shall make recommendations to the Board on action needed to
address the issue or make improvements. The Board shall satisfy itself that any issues raised
by the audit committee and the external Auditor and communicated to the Board have been
adequately addressed.
5.133 The Issuer shall inform the Listing Authority how the audit committee is constituted,
identifying clearly that independent member of the committee who is competent in
accounting and/or auditing as required by Listing Rule 5.117 and providing the reasons why
such member is deemed to satisfy the independence and competence criteria set out in the
said Listing Rule. The Issuer shall also provide the Listing Authority with the terms of
reference of the audit committee and shall inform the Listing Authority, without delay, of
any changes to the above.
5.134 The terms of reference of the audit committee should provide sufficient guarantees and
safeguards for the protection of the rights of shareholders and particularly with respect to
related party transactions. They should also prohibit any member of the audit committee
who has a direct or indirect interest in any contract, transaction or arrangement that is
brought before the committee from being present at, and from voting, at any meeting of the
committee during which such contract, transaction or arrangement is being discussed.
5.134A In so far as the requirements relating to the audit committee are concerned, an Issuer shall
also refer to and comply with the relevant provisions of the Statutory Audit Regulation, in
particular with Articles 16 and 17 of Title III of the said Regulation, relating to the
appointment of statutory auditors or audit firms.
Transactions with Related Parties
General
5.135 Listing Rules 5.136 to 5.142 set out safeguards that apply to transactions and arrangements
between an Issuer and a Related Party, which transactions must be entered into at arm’s
length and on a normal, commercial basis. Such safeguards are intended to prevent a Related
Party from taking advantage of its position and also to prevent any perception that it may
have done so.
5.136 In considering each possible related party relationship, attention should be directed to the
substance of the relationship and not merely the legal form.
5.137 The following are not necessarily related parties:
5.137.1 two entities simply because they have a Director or other member of key
management personnel in common;
5.137.2 two venturers simply because they share joint control over a joint venture;
5.137.3 providers of finance, trade unions, public utilities, and government departments
and agencies; simply by virtue of their normal dealings with an entity; and
5.137.4 a customer, supplier, franchisor, distributor or general agent with whom an
entity transacts a significant volume of business, merely by virtue of the
resulting economic dependence.
The role of the audit committee with respect to related party transactions
5.138 The audit committee of the Issuer or any other committee established by the Issuer that
satisfies the composition requirements prescribed by Listing Rule 5.117 shall be responsible
for vetting and approving related party transactions. Any reference in this part to the audit
committee shall be deemed to include a reference to such other committee that the Issuer
may set up in terms of this Listing Rule.
5.139 Where the Issuer sets up a committee, other than the audit committee, to carry out the
functions referred to in Listing Rule 5.127, the said committee shall provide the Listing
Authority with its terms of reference, which terms of reference have to comply with the
requirements of Listing Rule 5.134.
5.140 The audit committee shall give due consideration to:
5.140.1 the materiality of the transaction in the context of the Issuer’s business;
5.140.2 whether the transaction is in the ordinary course of the Issuer’s business or the
business of any its Subsidiary Undertakings as applicable; and
5.140.3 whether the transaction gives rise to preferential treatment to the Related Party
5.141 Should the audit committee, after considering the proposed related party transaction as laid
down in Listing Rule 5.140, deem that the proposed transaction will have a material effect
on the Issuer’s business, the Issuer shall make a Company Announcement which shall
contain:
5.141.1 the nature and details of the transaction;
5.141.2 the name of the Related Party concerned; and
5.141.3 details of the nature and extent of the interest of the Related Party in the
transaction.
5.142 Where the proposed related party transaction is not approved by the audit committee but the
Issuer still wants to proceed with the transaction, the Issuer shall:
5.142.1 make a Company Announcement which shall contain:
5.142.1.1 the nature and details of the transaction;
5.142.1.2 the name of the Related Party concerned; and
5.142.1.3 details of the nature and extent of the interest of the Related Party
in the transaction;
5.142.2 send a Circular to its shareholders containing the information required by
Listing Rule 6.17; and
5.142.3 obtain the approval of its shareholders either prior to the transaction being
entered into or, if it is expressed to be conditional on such approval, prior to
completion of the transaction and, where applicable, ensure that the Related
Party itself abstains from voting on the relevant resolution. The board of
directors of the Issuer shall disclose the fact that the audit committee has not
approved the related party transaction in question at the general meeting
convened for the purpose of this Listing Rule.
Exemptions
5.143 The rules dealing with related party transactions shall not apply in the following cases:-
5.143.1 the transaction is an issue of new Securities either:
5.143.1.1 for cash by the Issuer (or any of its Subsidiary Undertakings)
pursuant to an opportunity which (so far as is practicable) is made
available to all holders of the Issuer’s Securities (or to all holders of
a relevant Class of its Securities) on the same terms; or
5.143.1.2 made pursuant to the exercise of conversion or subscription rights
attaching to a Class of Securities Admissible to Listing or previously
approved by the Issuer’s shareholders in general meeting;
5.143.2 the transaction:
5.143.2.1 involves the receipt of any asset (including cash or Securities of the
Issuer or any of its Subsidiary Undertakings) by a Director of the
Issuer, its Parent Undertaking or any of its Subsidiary Undertakings;
or
5.143.2.2 is a grant of an option or other right to a Director of the Issuer, its
Parent Undertaking, or any of its Subsidiary Undertakings to acquire
(whether or not for consideration) any asset (including cash or new
or existing Securities of the Issuer or any of its Subsidiary
Undertakings);
in accordance with the terms of either an employee share scheme or a long-term
incentive scheme;
5.143.3 the transaction is a grant of credit (including the lending of money or the
guaranteeing of a loan):
5.143.3.1 to the Related Party upon normal commercial terms;
5.143.3.2 to a Director for an amount and on terms no more favourable than
those offered to employees of the Group generally; or
5.143.3.3 by the Related Party upon normal commercial terms and on an
unsecured basis.
5.143.4 the transaction is the grant of an indemnity to a Director of the Issuer (or any of
its Subsidiary Undertakings) to the extent not prohibited by Article 148 of the
CA, or the maintenance of a contract of insurance to the extent contemplated
by that article (whether for a Director of the Issuer or for a Director of any of
its Subsidiary Undertakings);
5.143.5 the transaction is an underwriting by the Related Party of all or part of an issue
of Securities by the Issuer (or any of its Subsidiary Undertakings) and the
consideration to be paid by the Issuer (or any of its Subsidiary Undertakings) in
respect of such underwriting is no more than the usual commercial underwriting
consideration and is the same as that to be paid to the other underwriters (if
any);
5.143.6 the terms and circumstances of the investment or provision of finance by the
Issuer, or any of its Subsidiary Undertakings are, in the opinion of an
independent adviser acceptable to the Listing Authority, no less favourable than
those applicable to the investment or provision of finance by the Related Party;
5.143.7 where the aggregate consideration or value of the related party transaction does
not exceed fifty thousand Euro (€50,000) in any twelve (12) month period.
Reporting requirement
5.144 The Issuer shall disclose all related party transactions ex post facto in the Annual Financial
Report.
Memorandum and Articles of Association
5.145 The Articles of Association of all Issuers seeking authorisation for Admissibility to listing
must conform with the provisions set out in Appendix 5.2 and obtain the prior authorisation
by the Listing Authority. Only in very exceptional circumstances will the Listing Authority
grant exemption from compliance with any of the provisions of Appendix 5.2
5.146 An Issuer shall not amend its Memorandum and Articles of Association unless prior written
authorisation has been sought and obtained from the Listing Authority.
5.147 If authorisation for the amendment to the Memorandum and Articles of Association is
granted by the Listing Authority, the Issuer must send a Circular to its shareholders
containing the information prescribed by Listing Rule 6.16.
Acquisitions and Realisations
5.148 In this section (except where specifically provided to the contrary) a reference to a
transaction entered into by an Issuer:
5.148.1 includes all agreements (including amendments to agreements) entered into by
the Issuer or its Subsidiary Undertakings;
5.148.2 excludes a transaction in the ordinary course of business;
5.148.3 excludes any transaction between the Issuer and its wholly-owned Subsidiary
Undertakings or between its wholly-owned Subsidiary Undertakings.
Classification of acquisitions and realisations
5.149 Acquisitions and realisations shall be classified as follows:-
5.149.1 Class 1 transaction: where any of the tests mentioned in Listing Rule 5.151
amount to five percent (5%) but less than thirty-five percent (35%); or
5.149.2 Class 2 transaction: where any of the tests mentioned in Listing Rule 5.151
amount to thirty-five percent (35%) or more.
Class tests
5.150 In order to classify acquisitions and realisations the following class tests will be used:
5.150.1 the gross assets test;
5.150.2 the profits test; and
5.150.3 the consideration test.
The gross assets test
5.151 The gross assets test shall be calculated by dividing the gross assets the subject of the
transaction by the gross assets of the Issuer. For the purposes of this Listing Rule, “the gross
assets of the Issuer” means the total non-current assets, plus the total current assets, of the
Issuer.
5.152 In the case of:
5.152.1 an acquisition of an interest in an undertaking which will result in the
consolidation of the assets of that undertaking in the accounts of the Issuer; or
5.152.2 a disposal of an interest in an undertaking which will result in the assets of that
undertaking no longer being consolidated in the accounts of the Issuer;
the “gross assets the subject of the transaction” means the value of 100% of that
undertaking’s assets irrespective of what interest is acquired or disposed of.
5.153 For an acquisition or disposal of an interest in an undertaking which does not fall within
Listing Rule 5.152, the “gross assets the subject of the transaction” means:
5.153.1 for an acquisition, the consideration together with liabilities assumed (if any);
and
5.153.2 for a disposal, the assets attributed to that interest in the Issuer’s accounts.
5.154 If assets, other than an interest in an undertaking, are acquired, “the assets the subject of the
transaction” means the consideration or, if greater, the book value of those assets as they
will be included in the Issuer’s balance sheet.
5.155 In the case of a disposal of assets other than an interest in an undertaking, “the assets the
subject of the transaction” means the book value of the assets in the Issuer’s balance sheet.
The profits test
5.156 The profits test is calculated by dividing the profits attributable to the assets the subject of
the transaction by the profits of the Issuer. For the purposes of this Listing Rule “profits”
means profits after deducting all charges except taxation and, in the case of an acquisition
or disposal of an interest in an undertaking referred to in Listing Rule 5.152, 100% of the
profits of the undertaking (irrespective of what interest is acquired or disposed of).
The consideration test
5.157 The consideration test is calculated by taking the consideration for the transaction as a
percentage of the aggregate Market Value of all the ordinary Shares of the Issuer. The figure
used to determine market capitalisation is the aggregate Market Value of all the ordinary
Shares of the Issuer at the close of business on the last day before prior to the date when the
transaction has been agreed to.
5.158 For the purposes of Listing Rule 5.157:
5.158.1 the consideration is the amount paid to the contracting party;
5.158.2 if all or part of the consideration is in the form of Securities to be traded on a
market, the consideration attributable to those Securities is the aggregate
Market Value of those Securities; and
5.158.3 if deferred consideration is or may be payable or receivable by the Issuer in the
future, the consideration is the maximum total consideration payable or
receivable under the agreement.
5.159 For the purposes of Listing Rule 5.158.2, the figures used to determine consideration
consisting of:
5.159.1 Securities of a Class already listed, must be the aggregate Market Value of all
those Securities on the last Business Day before the announcement; and
5.159.2 a new Class of Securities for which an application for Admissibility to Listing
will be made, must be the expected aggregate Market Value of all those
Securities.
5.160 If the total consideration is not subject to a maximum (and the other class tests indicate the
transaction to be a class 1 transaction) the transaction is to be treated as a class 2 transaction.
Acquisitions and disposals of Property
5.161 Acquisitions and disposals of Property by an Issuer (including any transactions or
arrangements the purpose of which is to change, in whole or in part, the beneficial ownership
of Property) are subject to the rules contained in this section save as indicated below:
5.161.1 for the purposes of Listing Rule 5.150.1 (the gross assets test), the assets test is
calculated by dividing the transaction consideration by the gross assets of the
Issuer and Listing Rules 5.154 and 5.155 do not apply;
5.161.2 for the purposes of Listing Rule 5.150.1 (the gross assets test), if the transaction
is an acquisition of land to be developed, the assets test is calculated by dividing
the transaction consideration and any financial commitments relating to the
development by the gross assets of the Issuer;
5.161.3 for the purposes of Listing Rule 5.150.1, the “gross assets of the Issuer” are, at
the option of the Issuer:
5.161.3.1 the aggregate of the Issuer’s share capital and reserves (excluding
minority interests);
5.161.3.2 the book value of the Issuer’s Properties (excluding those
Properties classified as current assets in the latest published
Annual Accounts); or
5.161.3.3 the published valuation of the Issuer’s Properties (excluding those
Properties classified as current assets in the latest published
Annual Accounts);
5.161.4 for the purposes of Listing Rule 5.150.2 (the profits test), “profits” means the
net annual rental income; and
5.161.5 the test referred to in Listing Rule 5.150.3 shall not apply but when any of the
consideration for an acquisition is in Shares, an alternative test will be applied
comparing the Shares to be issued with the number of Shares in issue.
Notification requirements
5.162 In the case of a Class 1 transaction, the Issuer shall make a Company Announcement as soon
as possible after the terms of the transaction are agreed.
5.163 In the case of a Class 2 transaction, the Issuer must:
5.163.1 issue a Company Announcement in the manner laid down by Listing Rule
5.162.
5.163.2 send an explanatory Circular to its shareholders and obtain their prior approval
in a general meeting for the transaction; and
5.163.3 ensure that any agreement effecting the transaction is conditional on that
approval being obtained.
Provided that Issuers without Equity Securities authorised as Admissible to Listing shall
only be required to comply with Listing Rule 5.163.1 when proposing to enter into a Class
2 transaction.
5.164 The Company Announcement referred to in Listing Rules 5.162 and 5.163 must include:
5.164.1 details of the transaction, including particulars of dates, parties, terms and
conditions, general nature of contract, the name of the receiving notary, where
applicable;
5.164.2 a description of the business carried on by, or using, the net assets the subject
of the transaction;
5.164.3 the consideration, and how it is being satisfied (including the terms of any
arrangements for deferred consideration);
5.164.4 the value of the gross assets the subject of the transaction;
5.164.5 the profits attributable to the assets the subject of the transaction;
5.164.6 the effect of the transaction on the Issuer including any benefits which are
expected to accrue to the Issuer as a result of the transaction;
5.164.7 for a disposal, the application of the sale proceeds;
5.164.8 for a disposal, if Securities are to form part of the consideration received, a
statement whether the Securities are to be sold or retained; and
5.164.9 details of key individuals important to the business or company the subject of
the transaction.
5.165 If, at any time subsequent to any Company Announcements made in terms of Listing Rules
5.162 or 5.163, the Issuer has become aware that there has been a significant change
affecting any matter contained in the Announcement or a significant new matter has arisen
which would have been required to be mentioned in that Announcement if it had arisen at
the time of making such Announcement, the Issuer must make another Company
Announcement.
5.166 The supplementary Company Announcement must give details of the change or new matter
and also contain a statement that, except as disclosed, there has been no significant change
affecting any matter contained in the earlier Announcement and no other significant new
matter has arisen which would have been required to be mentioned in that earlier
Announcement if it had arisen at the time of preparation of that Announcement.
5.167 In Listing Rules 5.165 and 5.166, “significant” means significant for the purpose of making
an informed assessment of the assets and liabilities, financial position, profits and losses and
prospects of the Issuer and the rights attaching to any Securities forming part of the
consideration. It includes a change in the terms of the transaction such that affects the
percentage ratios and requires the transaction to be reclassified.
5.168 The Circular referred to in Listing Rule 5.163.2 must comply with the requirements of
Listing Rules 6.18 to 6.22.
5.169 If, after the production of a Circular and before the completion of a Class 2 transaction, there
is a material change to the terms of the transaction, the Issuer must comply again separately
with Listing Rule 5.163 in relation to the transaction.
5.170 In deciding whether a Circular should be sent to shareholders, the Listing Authority may
aggregate acquisitions or realisations that have taken place since either the publication of
the last Accounts, or the issue of the last Circular, whichever is the later during the twelve
(12) months prior to the date of the latest transaction. Such aggregated transactions may then
be treated as if they were one transaction if they were all completed within a short period of
time, and the total of transactions is thirty-five percent (35%) or more as defined in Listing
Rule 5.149.2. For these purposes, the value of transactions in respect of which adequate
information has already been issued to shareholders will be included in the net tangible
assets or profits of the Issuer for comparison with the transaction or transactions under
consideration. In case of doubt as to aggregation, the Listing Authority should be consulted
at an early stage.
5.171 Without prejudice to the generality of Listing Rule 5.170, transactions will normally only
be aggregated in accordance with that provision if they:
5.171.1 are entered into by the Issuer with the same party or with parties connected with
one another; or
5.171.2 involve the acquisition or disposal of Securities or an interest in one particular
Company; or
5.171.3 together lead to substantial involvement in a business activity which did not
previously form part of the Issuer’s principal activities.
5.172 If, under Listing Rule 5.170, aggregation results in a class test of thirty-five percent (35%)
or more which would require Shareholder approval in terms of Listing Rule 8.105, such
approval is required only for the latest transaction.
5.173 Notwithstanding Listing Rule 5.170, where acquisitions are entered into since either the
publication of the last Accounts or the issue of the last Circular, whichever is the later, which
cumulatively amount to thirty-five percent (35%) or more in any of the percentage ratios,
the provisions outlined in Listing Rule 5.163 may apply.
Transactions Involving Substantial Shareholdings
5.174 This Listing Rule shall regulate the activities of an Issuer whenever it is advised or otherwise
becomes aware of an impending share negotiation or transaction involving a Substantial
Shareholding.
Substantial Shareholding shall for the purposes of this Rule mean the entitlement to exercise
or control the exercise of ten percent (10%) or more of the votes able to be cast at general
meetings or the entitlement to appoint a majority of Directors on the board of Directors of
an Issuer.
5.174.1 All parties to an offer for an acquisition or disposal of a Substantial
Shareholding in an Issuer as well as the Issuer must use every endeavour to
prevent the creation of a false market in the securities of the Issuer. All parties
involved in an offer for an acquisition or disposal of a Substantial Shareholding
in an Issuer and the Issuer must take care that statements are not made which
may mislead shareholders or the market.
5.174.2 Without prejudice to Listing Rule 5.16, an Issuer must promptly make a
Company Announcement:
5.174.2.1 when the board of Directors of the Issuer is advised or otherwise
becomes aware that a purchaser is being sought for a Substantial
Shareholding in the Issuer;
5.174.2.2 when the Issuer is the subject of rumour and speculation;
5.174.2.3 when the board of Directors of the Issuer is advised or otherwise
becomes aware of a firm intention to acquire or dispose of a
Substantial Shareholding in the Issuer;
5.174.2.4 when the board of Directors of the Issuer is advised or otherwise
becomes aware that an offer has been made to acquire or dispose
of a Substantial Shareholding in the Issuer.
5.174.3 Without prejudice to any applicable privacy or secrecy obligations in terms of
law, an Issuer may furnish in confidence to a bona fide offeror and the
corresponding bona fide transferor such information including unpublished
price-sensitive information as may be necessary to enable the bona fide offeror,
the bona fide transferor and their advisers to make, confirm, withdraw or modify
the offer, provided that such disclosure of information may only be furnished
subject to the following conditions:
5.174.3.1 the express consent of the Company in general meeting by an
ordinary resolution of the Company unless the memorandum or
articles of the Company require an extraordinary resolution, to
make such disclosure of information to bona fide offerors. Such
consent may, but need not, be limited to a specific prospective
offeror(s);
5.174.3.2 the signing of a confidentiality agreement signed by the prospective
transferor and the prospective offeror(s) to prevent the disclosure
and use of the information furnished, other than for the purpose of
the acquisition of the Substantial Shareholding in the Issuer;
5.174.3.3 an undertaking from the prospective offeror(s) whereby they bind
themselves not to deal in the Issuer’s shares or any derivative
instrument relating thereto, whether directly or indirectly, for a
period of one year following completion of the transaction or
termination thereof or discontinuance or withdrawal, other than to
complete the transaction that prompted the disclosure of
information hereunder;
5.174.3.4 an undertaking from the prospective transferor that it acknowledges
that the information received from the Issuer cannot be used or
communicated other than for the purposes of a transaction in the
shares that are the subject of the offer, whether wholly or in part,
whether with the prospective offeror(s) or otherwise, and that it
cannot deal in other shares of the Issuer for a period of one year
following completion of the transaction or termination thereof or
discontinuance or withdrawal.
5.174.4 When the transaction that prompted the furnishing of information in confidence
is completed the Issuer shall make a Company Announcement disclosing the
outcome of negotiations relating to the acquisition or disposal of a Substantial
Shareholding in the Issuer, including the price at which the Substantial
Shareholding was acquired or disposed of.
5.174.5 When the transaction that prompted the furnishing of information in confidence
is not completed and the Issuer is advised or otherwise becomes aware of such
non completion, the Issuer shall make a Company Announcement disclosing
the outcome of negotiations.
5.174.6 In the event that the transaction that prompted the furnishing of information in
confidence is completed, a purchaser which has had access to information in
confidence in terms of this Listing Rule shall be prohibited from acquiring
further securities in the Issuer or from disposing of securities in the Issuer,
whether directly or indirectly for a period of one year from the date of
acquisition.
5.174.7 In the event that the transaction that prompted the furnishing of information in
confidence is not completed, a bona fide offeror which has had access to
information in confidence in terms of this Listing Rule shall be prohibited from
acquiring securities in the Issuer, whether directly or indirectly, for a period of
one year following termination thereof or discontinuance or withdrawal, other
than to complete the transaction that prompted the disclosure of information
hereunder.
5.174.8 Regardless of the outcome of the transaction, the purchaser or the bona fide
offeror, as the case may be, shall, immediately following completion of the
transaction or termination thereof or discontinuance or withdrawal, notify the
Issuer to that effect and return all the information furnished by the Issuer and
shall take prompt action to cancel, delete or destroy such information furnished
by the Issuer that cannot be returned.
Notification of the acquisition or disposal of major holdings to which voting rights are
attached.
5.175 Where the Home Member State is Malta and as soon as a shareholder acquires 5% or more
of the Issuer’s shares to which voting rights are attached, the Issuer shall immediately inform
the shareholder of his obligation to notify the Issuer and the Listing Authority of any changes
in major holdings in terms of Listing Rules 5.176 to 5.214.
5.176 Any Shareholder who acquires or disposes shares to which voting rights are attached and
where the Home Member State is Malta, shall notify the Issuer and the Listing Authority of
the proportion of voting rights of the Issuer held by such Shareholder as a result of the
acquisition or disposal where that proportion reaches, exceeds or falls below the thresholds
of 5%, 10%, 15% 20%, 25%, 30%, 50%, 75% and 90%.
5.177 The voting rights shall be calculated on the basis of all the shares to which voting rights are
attached even if the exercise thereof is suspended.
5.178 This information shall also be given in respect of all the shares which are in the same Class
and to which voting rights are attached.
5.179 The Issuer and the Listing Authority shall also be notified in terms of Listing Rule 5.176
when the proportion reaches, exceeds or falls below the thresholds specified in the same
Listing Rule, as a result of events changing the breakdown of voting rights.
5.180 The threshold referred to in Listing Rule 5.176 shall be calculated on the basis of the
information made available to the public by the Issuer at the end of each calendar month, of
the total number of voting rights and capital, during which an increase or decrease of such
total number has occurred.
5.181 Where the Issuer is incorporated or registered in a non-EU or EEA State, the notification
shall be made for equivalent events.
5.182 The notification requirement defined in Listing Rule 5.176 shall also apply to a natural
person or Legal Entity who:
5.182.1 is entitled to acquire, to dispose of, or to exercise voting rights in any of the
following cases or a combination of them:
5.182.1.1 voting rights held by a third party with whom that person or
entity has concluded an agreement, which obliges them to
adopt, by concerted exercise of the voting rights they hold, a
lasting common policy towards the management of the Issuer
in question;
5.182.1.2 voting rights held by a third party under an agreement
concluded with that person or entity providing for the
temporary transfer for consideration of the voting rights in
question;
5.182.1.3 voting rights attaching to shares which are lodged as collateral
with that person or entity, provided the person or entity controls
the voting rights and declares its intention of exercising them;
5.182.1.4 voting rights attaching to shares in which that person or entity
has the right of usufruct;
5.182.1.5 voting rights which are held, or may be exercised within the
meaning of Listing Rule 5.182.1.1 to 5.182.1.4 above, by an
undertaking controlled by that person or entity;
5.182.1.6 voting rights attaching to shares deposited with that person or
entity which the person or entity can exercise at its discretion
in the absence of specific instructions from the shareholders;
5.182.1.7 voting rights held by a third party in its own name on behalf of
that person or entity;
5.182.1.8 voting rights which that person or entity may exercise as a
proxy where the person or entity can exercise the voting rights
at its discretion in the absence of specific instructions from the
shareholders.
5.183 The obligation to notify the Issuer in terms of Listing Rule 5.176 shall be an individual
obligation incumbent upon each shareholder, or each natural person or Legal Entity as
referred to in Listing Rule 5.182, or both in case the proportion of voting rights held by each
party reaches, exceeds or falls below the thresholds laid down in Listing Rule 5.176. In the
circumstances, however, referred to in Listing Rule 5.182.1.1 the said notification obligation
shall be a collective obligation shared by all the parties to the agreement.
5.184 In the circumstances referred to in Listing Rule 5.182.1.8, if a shareholder gives the proxy
in relation to one shareholder meeting, notification may be made by means of a single
notification when the proxy is given provided it is made clear in the notification what the
resulting situation in terms of voting rights will be when the proxy may no longer exercise
the voting rights at its discretion.
5.185 If in the circumstances referred to in Listing Rule 5.182.1.8 the proxy holder receives one
or several proxies in relation to one shareholder meeting, notification may be made by means
of a single notification on or after the deadline for receiving proxies provided that it is made
clear in the notification what the resulting situation in terms of voting rights will be when
the proxy may no longer exercise the voting rights at its discretion.